Sometimes, employers who are sued for discrimination in turn file their own lawsuit against an employee. I wrote about Wayne Wright and Schlumberger doing this here and here. In Wayne Wright’s case, the employer sued the former employee after she filed with the EEOC. The law firm sued for a declaration that it was justified in firing her. Schlumberger sued its former employee saying she had downloaded confidential information. Schlumbereger was found to have fabricated its story and was sanctioned.

But, some courts are not convinced that counter-lawsuits amount to retaliation. In Jones v. Frank Kent Motor Co., 2015 WL 4965798 (Tex.App. Ft. Worth 2015 (unpublished), the employee sued Kent Motor Co. The former employer then counter-sued claiming Mr. Jones had participated in a scheme to fraudulently increase bonuses for himself based on customer satisfaction surveys. Kent Motor Co. moved for partial summary judgment. The partial judgment was granted. Kent Motor Co. then non-suited its counter-claims. The court then reinstated Mr. Jones’ retaliation claim. Kent Motor Co. then reinstated its counter-claims. Mr. Jones then amended his Petition to claim the counter-claims were retaliation in themselves. The employer filed an exception to that allegation. The court granted that special exception and the retaliation claim based on the counter-claims as dismissed. After a bench trial, the court found in favor of the defendant.

On appeal, Plaintiff Jones argued that the district court erred in not recognizing a claim of retaliation based on a frivolous counter-claim. Kent Motor Co. had counter-claimed for civil theft, common law fraud, mail fraud, breach of fiduciary duty, and for money received. The court said there was “ample” evidence for Kent Motor Co.’s claims and would not find them to frivolous. Although, it did not explain what that evidence was. It mentioned that eight or nine surveys were sent to Mr. Jones’ home address. But, it did not explain if that meant they were fraudulent, or a common mistake, or what.

The court of appeals made the remarkable claim that in general, Texas does not recognize post-employment retaliation for filing counter-claims. It notes the decision in Burlington Northern &Santa Fe RR v. White, 548 U.S. 53 (2006), which expressly finds that any action can amount to retaliation so long as the action dissuades a reasonable person from filing or supporting a charge of discrimination. It instead relied on a Fifth Circuit case, Hernandez v. Crawford Bldg Material Co., 321 F.3d 528, 532-33 (5th Cir. 2003). Hernandez was almost certainly overruled by White. The Jones court claims three subsequent cases continue to cite Hernandez. But, it does not mention that those three cases cite Hernandez for holdings not related to whether post-termination retaliation can include counter-claims. See Jones, at note 3. See decision here.